Citation Nr: 1752786 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 16-19 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for diverticulitis, to include as secondary to service-connected diabetes mellitus, type II. 2. Entitlement to service connection for peripheral neuropathy, to include as secondary to service-connected diabetes mellitus, type II. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel INTRODUCTION The Veteran had active duty service in the United States Army from January 1964 to January 1966, including service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board has previously remanded this claim in April 2017 for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay, the Veteran's appeal must be remanded for further development to ensure that there is a complete record upon which to decide the Veteran's claim and so that he is afforded every possible consideration. The Veteran contends that he has diverticulitis and peripheral neuropathy related to service or as secondary to his service connected diabetes mellitus, or due to the medications taken for the treatment of his service connected diabetes mellitus. Pursuant to the April 2017 Board remand, the Veteran was afforded a VA medical examination in June 2017 to determine the nature and etiology of his claimed conditions. Upon examination of the Veteran, the VA physician determined that the Veteran's diagnosed diverticulitis was not directly related to service, nor secondary to his service-connected diabetes mellitus. On the issue of direct service connection, the only rationale provided was that the Veteran was not diagnosed or treated for diverticulitis in service. On the issue of secondary service connection, the examiner's rationale was that "no one knows exactly what causes diverticula." The physician provided no other analysis or bases to support his medical conclusions. The Board finds these opinions to be conclusory and unsupported by sufficient rationale. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). A mere conclusory opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to a medical opinion. Stefl, 21 Vet. App. at 125. The same examining physician also providing conflicting information as to whether the Veteran has a peripheral nerve condition. In this regard, as to diagnosis the examiner checked a box that stated the Veteran did not have a peripheral nerve condition or neuropathy, but then in another box he checks that the Veteran has symptoms attributable to a peripheral nerve condition. In light of these contradictory findings, the Board has no choice but to remand this issue for a new VA examination, to determine whether the Veteran actually has the disability for which he seeks service connection, and if so, whether it is related to service, or a service connected disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion in response to a claim of entitlement to service connection, VA must ensure the examination or opinion is adequate, else, notify the Veteran why one cannot or will not be provided). The Board further notes that the record indicates that the Veteran has received treatment for diverticulitis at a facility called "Centerpoint." It is unclear if this is a VA or private medical facility. The evidence of record indicates that he was hospitalized there in December 2014, March 2015, and September 2015, however, medical records of these hospitalizations are not available in the claims file. On remand, these and any other outstanding treatment records should be identified and obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and request that he provide information as to any outstanding private and/or VA treatment records relevant to the claims on appeal. Specifically, he should be requested to identify the medical facility known as "Centerpoint," and to provide authorization for VA to obtain medical records from that facility. After obtaining the necessary authorization from the Veteran, the RO should make a request for these outstanding records. 2. Then, schedule the Veteran for a VA examination, with an examiner who has not previously examined him, to determine the nature and etiology of diverticulitis. The examiner must review the claims file and must note that review in the report. A complete history of symptoms should be elicited from the Veteran. The examiner should set forth all pertinent findings, and provide a complete rationale for the conclusions reached. The opinion should reconcile the prior June 2017 VA examiners opinion. Any tests and studies deemed necessary should be conducted and all findings should be reported in detail. (a) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diverticulitis was incurred in or is otherwise related to any incident of service. (b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diverticulitis was caused by his service-connected diabetes mellitus, to include any medications taken for treatment of diabetes mellitus? (c) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current diverticulitis was aggravated by his service-connected diabetes mellitus, to include any medications taken for treatment of diabetes mellitus? NOTE: In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner should set forth all pertinent findings, and provide a complete rationale for the conclusions reached. If an opinion cannot be reached without resorting to speculation, the examiner must explain why. 3. Then, schedule the Veteran for a VA examination, with an examiner who has not previously examined him, to determine the nature and etiology of any peripheral neuropathy. The examiner must review the claims file and must note that review in the report. A complete history of symptoms should be elicited from the Veteran. The opinion should reconcile the prior June 2017 VA examiners opinion. Any tests and studies deemed necessary should be conducted, to include EMG and NCS testing, and all findings should be reported in detail. (a) The examiner is requested to determine whether the Veteran has a current diagnosis of peripheral neuropathy. If peripheral neuropathy is diagnosed, the examiner is asked to opine: (a) Whether it is at least as likely as not (50 percent probability or greater) that the peripheral neuropathy was incurred in or is otherwise related to any incident of service. (b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's peripheral neuropathy was caused by his service-connected diabetes mellitus, to include any medications taken for treatment of diabetes mellitus? (c) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's peripheral neuropathy was aggravated by his service-connected diabetes mellitus, to include any medications taken for treatment of diabetes mellitus? NOTE: In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner should set forth all pertinent findings, and provide a complete rationale for the conclusions reached. If an opinion cannot be reached without resorting to speculation, the examiner must explain why. 4. After ensuring compliance with the above, readjudicate the claims on appeal. If the benefit sought on appeal remains denied, then a supplemental statement of the case should be furnished to the Veteran and his representative, and he should be afforded a reasonable opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).